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2017 DIGILAW 287 (GUJ)

Amratlal Shankarlal Nai v. State of Gujarat

2017-02-03

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 05/07/2003 rendered by the learned Special Judge (Fast Track Court), Bhuj-Kachhch in Special Case No. 11 of 1988 whereby the appellant has been convicted for the offence punishable under Section 161 of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment and pay fine of Rs. 250/-. The appellant is also convicted for the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment of one year and pay fine of Rs. 250/-. Further, in default to pay total fine of Rs. 500/-, the appellant accused to undergo simple imprisonment of fifteen days. It is also ordered to run both the sentences concurrently. 2. The short facts giving rise to the present appeal are that the appellant-accused was serving as a Talati-cum-Mantri and he was in-charge of Moti Khakhar Jooth Gram Panchayat and Depa Gram Panchayat under Taluka Mundra. That Kakubha who is brother of the complainant Harisinh Aghubha Jadeja of village Nani Khakhar had submitted an application before Gram Panchayat for purchasing bullock cart. The complainant Harisinh met the accused three days prior to 15/10/1986 and requested for expeditious disposal of the loan application of his brother and at that time the accused made a demand of Rs. 500/-. That the complainant informed the accused that he cannot arrange the amount immediately and he will arrange the same within two-three days. That the accused told the complainant that he was to go to Mundra in a meeting on 15/10/1986 and the complainant should come to Depa Gram Panchayat office between 4:00 to 5:00 p.m. on that day and pay Rs. 500/- and even if not possible to reach there, the complainant should go to residence of the accused to make the payment. That the complainant did not desire to pay such amount and he contacted ACB office and lodged the complaint. That the Investigating Officer had summoned panchas from the District Industries Center and necessary demonstration of anthracene powder was carried out and instructions were passed on to the complainant and panch No. 1. That thereafter members of the raiding party went to village Depa. That the Investigating Officer had summoned panchas from the District Industries Center and necessary demonstration of anthracene powder was carried out and instructions were passed on to the complainant and panch No. 1. That thereafter members of the raiding party went to village Depa. That the complainant and Panch No. 1 went to Depa Gram Panchayat office and the same was found closed. That thereafter, they went to the residence of the accused and got information that the accused had gone to Desalpar village and will come in the evening. That thereafter, as per instruction of Investigating Officer, the complainant and Panch No. 1 went to bus stop and waited there along with the members of the raiding party. That at about 8:00 p.m., bus come and four-five persons got down from the said bus. That amongst them, one was the accused and the complainant met the accused. That there was talk between the complainant and the accused and in pursuance of the same, demand was made by the accused. That the accused opened his hand bag and requested the complainant to put money in the said bag. That the complainant took out money and put the same in the hand bag of the accused and alarmed as per agreed signal due to which members of the raiding party came there and took the accused from the bus stop to the Gram Panchayat of village Depa and search and seizure was made and recovered Rs. 500/- along with ration card and other papers. That anthracene powder test was made which was found positive qua currency notes and hand bag. That no anthracene powder marks found on the hand of the accused. That thereby the appellant committed the offence. Hence, the complaint came to be lodged against the appellant-accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed as such. 6. Mr. A.D. Shah, learned senior advocate assisted by Mr. Ahuja, learned advocate for the appellant has took this Court through the entire material available on record and has argued that the complainant himself turned hostile and even he went to the extent of disowning the complaint as well as he had not deposed in his deposition as regards to demand of anything from him and even he had denied the recitals made in his complaint and that fact was even accepted by the prosecution after declaring him hostile. The prosecution has not confronted him with the help of Section 145 of the Indian Evidence Act and has not brought on record the contradictions as regards to his previous statement made before the police. Consequently, therefore, even the complaint as well as his previous statement made before the police are not proved in accordance with law. He has argued that in absence of evidence of the complainant as regards to pre demand and resultant complaint, the demand at the time of trap is not getting proved in absence of the evidence of complainant. In support of the above contention, Mr. He has argued that in absence of evidence of the complainant as regards to pre demand and resultant complaint, the demand at the time of trap is not getting proved in absence of the evidence of complainant. In support of the above contention, Mr. A.D. Shah, learned senior advocate has put reliance upon the decision of Hon'ble Supreme Court in the case of M.R. Purshotham v. State of Karnataka reported in (2015) 3 SCC 247 wherein in para No. 6 and para No. 7, it is observed as under: "6. PW 1 Ramesh, the complainant did not support the prosecution case. He disowned making the complaint in Ext. P-1 and stated in his examination-in-chief that the accused had not demanded anything from him and he did not know what is written in Ext. P-1 and the police have not recorded his statement in respect to this case. He was, therefore, declared hostile. However, PW 3 Kumaraswamy, panch witness has testified that after being summoned by PW 4 Inspector Santosh Kumar on 18-2-2000, the contents of Ext. P-1 were explained to him in the presence-of the complainant and he accompanied the complainant to the house of the accused, wherein, the complainant gave the sum of Rs. 500 to the accused as illegal gratification. It is on the aforesaid basis that the liability of the appellant-accused for commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence the complainant PW 1 Ramesh had not supported the prosecution case. 7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already sent the complainant PW 1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three-Judge Bench of this Court in B. Jayraj v. State of A.P. Is relevant and it held as follows: "8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. In this context the recent decision of a three-Judge Bench of this Court in B. Jayraj v. State of A.P. Is relevant and it held as follows: "8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, he evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established." 6.1. Mr. A.D. Shah, learned senior advocate has further argued that though the panch witness has supported the case of the prosecution to some extent, in his examination in chief, the panch has deposed that whenever they met the accused at ST stand at about 20:05 hours on 15/10/1986, at that time, the complainant inquired as regards to his loan papers to which the accused replied that they are ready. Thereafter, the complainant voluntarily told that he has brought the money. Thereafter, the complainant voluntarily told that he has brought the money. At that time, the accused opened a chain of his hand-bag and told the accused to drop the money in it. Thereafter the complainant took out the money from his pocket and drop the same into the hand-bag of the accused and thereafter, the complainant gave pre arranged signal and due to which other members of the raiding party came over to the place of incident. Relying upon the aforesaid version of the panch who was available during the course of trap with the complainant, Mr. A.D. Shah, learned senior advocate has argued that even if aforesaid evidence may be taken at its face value, in that case also, the prosecution case cannot be taken any further especially because the complainant himself voluntarily told that he brought money and the accused told him to drop the same into his hand-bag but nowhere in the said version, any utterance is forthcoming as regards to demand of illegal gratification and even as to why the complainant has brought the money and why he was directed to place the same into the hand-bag of the accused. In view of aforesaid nature of evidence on record, Mr. A.D. Shah, learned senior advocate has argued that it would be hazardous to believe that there was any demand against illegal gratification and that sort of presumption cannot be raised in order to convict the accused in absence of clear evidence on record. Mr. A.D. Shah, learned senior advocate, in support of his arguments even cited the decision of the Hon'ble Supreme Court in the case of P. Satyanarayana Murthy v. State of Andhra Pradesh and another, reported in (2015) 10 SCC 152 wherein para-23, it is observed as under: "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Section 7 and 13(1) (d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these tow sections of the Act. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these tow sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of he amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder." 6.2. Mr. A.D. Shah, learned senior advocate has further argued that the factum of demand can only be proved from the evidence of the complainant and that issue is no longer res integra as in the several decisions of the Hon'ble Supreme Court as well as the celebrated decision in the case of B. Jayraj v. State of Andhra Pradesh, reported in (2014) 13 SCC 55 wherein para-8, it is observed as under: "8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at that time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established." 6.3. Mr. A.D. Shah, learned senior advocate has further argued that in nutshell the prosecution has miserably failed to prove vital ingredients of demand, acceptance and recovery of tainted currency notes from the hand-bag belonging to the accused and even also recovery is also doubtful and the trap which came to be laid at the bus station of Depa village of Taluka Mundra and thereafter, search and seizure was indisputably effected at the village panchayat office of Depa village and indisputably at the time of trap, hand-bag was already taken away from the accused by the panch No. 1 at the instance of the officer and he carried out the hand-bag from the ST depot of Depa village to Panchayat office and even the evidence of panch also suffers from vice of improvements and contradictions and he gave the version before the Court which was not stated in the panchnama or in his statement and therefore, his credibility is doubtful. His brother is also involved in the case of misappropriation. Not only that but PW-1 was a requisite Government Official who cannot be permitted to act as an independent panch. In light of the aforesaid evidence, he has urged that the evidence of the panch is not sufficient to prove the ingredients as regards to even demand, acceptance and recovery from the accused. Therefore, he has urged this Court to allow the present appeal and set aside the judgment of conviction. 7. On the other-hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court. He has taken this Court through the material evidence available on record. Therefore, he has urged this Court to allow the present appeal and set aside the judgment of conviction. 7. On the other-hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court. He has taken this Court through the material evidence available on record. He has fairly contended that though the complainant has not supported the case of the prosecution and even he has disowned his complaint, however, according to his submission, the evidence of the panch No. 1 who accompanied at the time of trap is sufficient evidence so far as establishing the vital ingredients as regards to demand, acceptance and recovery and he has further argued that the testimony of PW-1 is fully getting corroboration from the contemporaneous record in the nature of panchnama as well as previous statement recorded by the police and even the deposition of Investigating Officer. In that view of the matter, he has argued that based upon the aforesaid evidence available on record, the learned Trial Court has rightly recorded the conviction and the same may not be disturbed by this Court. 8. This Court has heard Mr. A.D. Shah, learned senior advocate for the appellant and Mr. K.P. Raval, learned Additional Public Prosecutor for the respondent-State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, brother of the complainant applied for loan to purchase bullock cart which was required to be processed through the present accused who was at the relevant time serving as Talati-cum-Mantri of village Moti Khakhar, Jooth Gram Panchayat, Taluka Mundra, District-Kachchh. While the complainant met accused with regard to processing his application, the accused demanded Rs. 500/- as illegal gratification which he was not willing to pay and therefore, he approached the ACB, Bhuj and lodged the complaint and on 15/10/1986, at about 20:05 hours, the accused was caught red handed along with the tainted currency notes of Rs. 500/- and thereby the appellant committed the offence punishable under Section 5(2) of the Prevention of the Corruption Act, 1947 as well as under Section 161 of the Indian Penal Code. 10. 500/- and thereby the appellant committed the offence punishable under Section 5(2) of the Prevention of the Corruption Act, 1947 as well as under Section 161 of the Indian Penal Code. 10. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : 2009 AIR SCW 3994, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 11. In State of Kerala and another v. C.P. Rao (2011) 6 SCC 450 : AIR 2012 SC (Supp) 393, the Honourable Apex Court reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 12. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj AIR 2014 SC (Supp) 1837 (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 13. PW-1 Harisinh Jadeja who is the complainant has deposed that he is residing with his family at village Sukhpur Timba of Taluka Mundra and Kakubha is his brother. He has deposed that his brother applied for loan for purchasing bullock cart for which he approached the accused-Talati-cum-Mantri. He has deposed that the accused demanded ration card of his brother and as he was not putting any heed to his request and therefore, he approached the ACB and gave the complaint. He has deposed that he lodged the complaint but what was written in the complaint, he did not know and he know only to sign. As the complainant did not support the case of the prosecution, he was declared hostile. After declaring him hostile, learned APP brought on record his denial as regards to his complaint and previous statement but the learned APP did not prove contradictions invoking the provisions of Section 145 of the Indian Evidence Act. Therefore, the prosecution failed to even bring on record as regards to complaint which came to be produced at Exh. 20. 14. PW-2 Nishith Jayshankar Joshi has deposed that he was serving in the office of District Registrar Cooperative Societies and while he was serving as Senior Clerk in the office of District Industrial Center, Bhuj, he was requisitioned as official panch on 15/10/1986 by the ACB. He has deposed that he was called at the ACB office and his signature was obtained along with another panchas in the complaint which is at Exh. 20. He has deposed that he was called at the ACB office and his signature was obtained along with another panchas in the complaint which is at Exh. 20. He has deposed that thereafter, test of anthracene powder was carried out in his presence over the five currency notes of Rs. 100/- and thereafter he was instructed to remain along with the complainant during the course of trap. He has deposed that accordingly, he accompanied the complainant on 15/10/1986. He has deposed that along with the members of the raiding party, they first went to Depa Gram Panchayat where the office was closed and thereafter they went to house of the accused from where they were informed by the wife of the accused that her husband has gone out from the village and will came in the evening. He has deposed that thereafter they were instructed by the Investigating Officer to go to the ST Depot of village Depa and accordingly they were waiting there for bus to arrive. He has deposed that thereafter bus arrived at 8:05 hours in the evening from which four to five persons came down and amongst them, the accused was there. He has deposed that at that time, the complainant met the accused and the accused inquired about him to which the complainant said that he was his relative and thereafter the complainant inquired about loan paper of his brother for which the accused replied that the paper are ready and also asked about money to which the complainant told that he has brought the money. He has deposed that at that time, accused opened chain of his hand-bag and told the complainant to drop the money into the same and accordingly, the complainant took the money from his right pocket and put the same into the hand-bag of the accused. He has deposed that thereafter the accused closed the chain of the hand-bag and at that time, the complainant raised pre-arranged signal due to which members of the raiding party came over there and identified themselves. He has deposed that thereafter as per instruction of Mr. Puvar, officer of the raiding party, he took the hand-bag of the accused and they came to Depa village panchayat office where Mr. Puvar asked about the money and after following due procedure, he recovered money from the hand-bag of the accused. He has deposed that thereafter as per instruction of Mr. Puvar, officer of the raiding party, he took the hand-bag of the accused and they came to Depa village panchayat office where Mr. Puvar asked about the money and after following due procedure, he recovered money from the hand-bag of the accused. However, in the cross examination, he has admitted that before his arrival at the ACB office, the complaint was already written. He has also admitted that his brother was working as Clerk in the Lalan College and his brother was falsely involved in criminal case of misappropriation. He has also admitted that, in the second part of panchnama, at the time of trap, it is not mentioned that nothing is mentioned as regards to raising the signal. 15. PW-4 Ranvirsinh Vadansinh Puvar has deposed that on 15/10/1986, he was serving as an Police Inspector, ACB, Bhuj. He has deposed that on 15/10/1986, the complainant lodged the complaint before him against the present appellant-accused as regards to demanding illegal gratification and on that basis he arranged for trap and made requisition of official panch and has detailed as to how he made understand the complainant as well as panch as regards to procedure of trap and he also detailed as to how he has carried out the investigation. He has also deposed that after receiving the signal during the trap, he reached along with other members of raiding party to the said place where he inquired as regards to the incident from panch No. 1 and thereafter directed panch No. 1 to take the hand-bag from the accused and thereafter, they proceeded to the office of panchayat where search and seizure was carried out and tainted currency notes were found out from the aforesaid bag which was taken by the panch No. 1 from the accused and numbers of currency notes were tallied and test of anthracene powder was found to be positive, however, test of anthracene powder was found negative so far as bag of the accused is concerned. 16. On overall evaluation of the aforesaid evidence on record, indisputably the complainant who lodged the complaint has not at all supported the case of the prosecution and he even disowned lodging of his own complaint. Thereafter though the prosecution declared him hostile, however, prosecuting agency has not at all tried to bring on record the complaint at Exh. 16. On overall evaluation of the aforesaid evidence on record, indisputably the complainant who lodged the complaint has not at all supported the case of the prosecution and he even disowned lodging of his own complaint. Thereafter though the prosecution declared him hostile, however, prosecuting agency has not at all tried to bring on record the complaint at Exh. 20 by confronting him as well as any previous statement came to be recorded under Section 161 of the Code of Criminal Procedure. In consequence whereof, though the complaint is brought on record, it remains merely a piece of paper as the prosecuting agency has not at all confronted with the contents of complaint and has not asked any question with the aid of Section 145 of the Indian Evidence Act. Therefore, complaint as well as previous statement are meaningless. 17. In view of the aforesaid nature of evidence, the prosecution case remained totally blacked out, so far as previous demand is concerned as well as on the aspect of demand itself. So far as the evidence of PW-2 who was requisitioned as official panch No. 1 and who accompanied with the complainant at the time of trap may be taken into consideration in its face value, then also, as alleged by Mr. A.D. Shah, learned senior advocate, nothing concretely reveals whether any demand as regards to illegal gratification was made by the accused from the complainant. On the contrary, it is emerging out from his evidence that at the time of trap, the complainant voluntarily told him that he brought the money. So far on overall evaluation of his evidence also, though the panchnama of dropping the tainted currency notes into the hand-bag of the accused may be believed to be proved, then also, thereafter the trapping agency instead of making the procedure of search and seizure on the spot, took the accused and the complainant as well as other members of raiding party to the office of the Gram panchayat and thereafter the seizure came to be effected qua the hand-bag which was indisputably in possession of PW-1. Indisputably as per the evidence of the Investigating Officer as well as panch, the bag- muddamal article No. 7 belonging to the accused was in custody and possession of PW-1 from the spot of trap which came to be effected at bus station of Depa village to the office of Depa village panchayat. Taking into consideration that fact whenever the trapping party effected the recovery at a different place and the hand-bag was in the custody of different person, then entire procedure of search, seizure and recovery becomes doubtful. 18. Even otherwise also in view of totality of facts and circumstances of the case, when the complainant himself has not at all supported the case of the prosecution, consequently, therefore, the prosecution miserably failed to establish the case as regards to factum of pre demand and instant demand at the time of trap. Moreover, evidence of panch No. 1 is not disclosing anything as regards to the clear and cogent demand made by the accused. On the contrary the evidence on record is otherwise and in that view of the matter also, the factum of demand and acceptance is not being established in view of appreciation of the evidence of both the crucial witnesses in light of principle laid down by the Hon'ble Supreme Court in the above cited decisions. 19. In a bribery case, more particularly in the State of Gujarat, the trapping party used to requisition service from the Government Official to act as a panch in order to eliminate the question of turning them hostile. In such situation, the evidence of the complainant whose evidence is to be considered as the preliminary evidence as regards to establishing the factum of demand and acceptance and the evidence of the shadow witness (requisitioned panch), which is used to be utilized for the purpose of corroboration of the evidence of the complainant remains to that pedestal only but the evidence of shadow witness cannot take place as the preliminary evidence and conviction cannot be based upon evidence of such shadow witness only, whenever from his evidence, nothing is concretely revealing as regards to demand and acceptance. 20. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. 20. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 21. As such in the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy v. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj v. State of Karnataka, reported in (2016) 1 SCC (Cri) 19 and (iii) Krishan Chander v. State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable. 22. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 05/07/2003 rendered by the learned Special Judge (Fast Track Court), Bhuj-Kachhch in Special Case No. 11 of 1988 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.